Ed Monahan Public Advocate

1. Substance Abuse: Senate Bill 4 (2009) Treatment options expanded Ed Monahan Public Advocate Ernie Lewis KY Association of Criminal Defense Lawyers June 2009

2. SB 4 Diversion Pretrial release Treatment

3. Remarkable prefatory statement 80% of persons involved in crime are addicted $40 million new funds applied to drug abuse treatment Goal: “[a]ggressive and effective response to the threat to pubic health and safety created by persons with severe substance abuse addictions.”

4. SB 4 is voluntary Entry into the DOC intensive secure substance abuse recovery program is voluntary Defendant can leave the program at any time Hearing held if defendant wants to leave or wants shorter treatment Pretrial release screening is voluntary Note: this is not for the innocent client

5. SB 4 is about diversion • Amends KRS 533.250 - .260 • Prosecutor still has control over who gets in under KRS 533.250 and Flynt v. Com, 105 S.W.3d 415 (KY 2003) • Begins with screening evaluation by PTRO • “Condition precedent” for diversion: treatment where person has a history of substance abuse • Options for the Court • Commitment to DOC program • Secular or faith based • Intensive outpatient • Residential program

6. Compliance must be demonstrated • Compliance with treatment program required to get diversion • Demonstrated by: • performance on pretrial release • drug monitoring • treatment performance • Compliance can be waived by the court by a showing of “exigent circumstances” sufficient to justify diversion

7. Class C felony charges may be diverted

8. Department of Corrections program Court commits to the DOC program “Intensive secured substance abuse recovery program” 90 - 365 day program - length is determined by the program At least 200 persons in a minimum security facility

9. SB 4 is also about pretrial release PTRO screens “for recent and relevant substance abuse risk factors” when someone is charged with a KRS 218A offense or when person is charged with a felony “whose criminal record indicates a history of recent and relevant substance abuse.” Refusal to be screened does not disqualify consideration for pretrial release

10. Pretrial release • Where screening demonstrates “recent and relevant substance abuse risk factors,” court may grant pretrial release with conditions • Conditions: • Drug and alcohol testing • Additional assessment • Treatment or recovery program • Appearance at a future hearing

11. Treatment is the essence of SB 4 Intent is to increase treatment available for Kentucky’s drug problem DOC treatment is to “serve the committed person’s substance abuse condition, and to provide the person with the skills and training needed to prevent the person from engaging in substance abuse upon release from the program.” DOC program requires an aftercare plan

12. Calculation of time Time spent in DOC facility counts as time in custody ONLY if person completes treatment Court has discretion whether to count time on other programs If person drops out or is kicked out, Court has discretion whether to count time or not

13. Due process • Counsel is involved • Hearings are required to: • obtain pretrial release • enter DOC program • leave DOC program voluntarily • shorten time in DOC program • revoke program commitment

14. Assess worth of prosecution’s case early Assess client’s addiction Advise on whether to participate in pretrial release screening Prepare client for screening Advocate for pretrial release where appropriate Assess whether diversion is the goal Assess whether suppression issues exist Involve defense social worker Guide through the treatment process

15. Miscellaneous Suppression issues? Conditional plea? Alcohol addiction? Ethical dilemma: treatment before discovery is complete?

16. Client’s decision • Defense social workers will be vital to the success of this process because some defendants will be reluctant to choose this option

18. DPA Social Work Pilot Project The DPA Social Worker Pilot was funded by the 2006 Kentucky General Assembly to test whether a Social Worker in a Public Defender’s office could: • Divert persons with significant social and economic barriers to services and treatment so that they can successfully transition into their communities and become productive citizens; • Provide judges with relevant mitigating information about a defendant’s health, mental health, and social history, as well as viable alternatives to incarceration; • Save incarceration costs by diverting persons with addiction and mental illness to community-based treatment; and • Reduce recidivism rates.

19. Prepare alternative sentencing plans; Complete social histories on clients; Assist clients in establishing positive support systems; Request and obtain records; Make referrals for the client to enter treatment; Develop Re-Entry supportive plans Provide an up-to-date Resource Guide; Interviewing clients and families; Be a support system to the client and family; Assist the attorney with identifying what family members would be an asset to speak with. What does a DPA Social Worker do for the DPA Attorney?

20. The Results of the SWPP 229 adults and juveniles were served by 3 social workers A high percent of adults and juveniles reported signs of substance abuse (86% adults, 52% juveniles) A high rate of mental distress (73% adults, 73% juveniles) 181 defendants (141 adults, 40 juveniles) were re-interviewed after six months about services received and their current status and condition

21. More Results • 167 defendants showed signs of mental illness. • 180 defendants showed signs of drug or alcohol addiction. • 147 defendants were dually diagnosed. • 131 (of 181) reported abstinence following intervention. • 118 stayed in treatment programs (74%). • 15 cases were dismissed pretrial. • 93 defendants were released on bond (40 to 50%).

22. Measuring Recidivism • 6 month follow-up results: 79 (82%) of 96 adult defendants were released from prison or jail and were still in the community • That is an18% recidivism rate for the DPA program, as compared to the 35% state-wide rate of those not a part of the DPA program

23. The Savings • Each Social Worker saved 10,000 days of incarceration • The percentage of defendants abstaining from substances was 93% or more, and the number of defendants participating in AA, NA or other self-help groups tripled • The program’s net annual savings was $290,508 • For $1.00 invested in Social Workers’ salaries, the state saved $3.25 of incarceration costs

24. The Bigger Picture • Total annual savings was $1.3 million • Projected savings for state-wide implementation is estimated to be $3.1 million per year. • KY is saving $96,800 per social worker, which is more than double the cost of the social worker ($43,000).

25. Social workers are uniquely able to guide offenders into effective treatment programs • covered by the attorney-client privilege, increasing the likelihood and effectiveness of early intervention; • 2) improve coordination and cooperation among criminal justice agencies and treatment providers. DPA represents the vast majority of criminal defendants in the state and is thus particularly well-suited to lead a collaborative effort to address substance abuse by offenders, and • 3) intervention early in a case results in the presentation of detailed, evidence-based sentencing and pretrial release plans to the court, increasing the likelihood of pretrial release or probation with an individualized sentencing plan, decreasing incarceration costs and reducing recidivism.